But I would argue that the meaning of the VA statute is **not ** plain. There is no well-defined unambiguous definition for the “privileges or obligations of marriage”. So therefore any obligation or privilege is potentially subject to a dispute that must be resolved judicially.
That’s what the law says. Lacking a firm definition of the “privileges or obligations of marriage” though and following the rather obvious intent of the legislature that gay people are second-class citizens, shouldn’t the court interpret this as broadly as possible? C’mon, Rick. Do you honestly think that the Governor’s office recommended that the words “, partnership contract or other arrangement” be struck from the bill just because they felt like it? I would love to see copies of the floor speeches in favor of this bill that compel you to a limited interpretation for the statute. Aren’t the floor speeches in favor of legislation often used to determine legislative intent?
Okay, so the power is not exclusive to marriage, but you yourself admit that it is one of the “privileges or obligations of marriage.” The statue quite clearly **doesn’t ** say “the *exclusive * privileges or obligations of marriage”. Who’s being the judicial activist now?
I will bet you a six-pack of the beer of your choice right now that if the statute isn’t struck down before then, someone will use exactly this reasoning to try to void an agreement between two homosexuals within the next two years. Are we on?
And while not part of this bet, my personal feeling is that it is exactly a living will situation that causes the suit. Here’s my prediction. John and Jim set up a living will. Jim is severely injured in a car accident and John steps in via the living will. Jim’s parents (who didn’t approve of Jim being gay in the first place) challenge under Va. Code § 20-45.3. Court rules ???
Done. I will be flush with my election winnings, after all.
The only comment I make now is that the challenged document must be a more-or-less standard living will, not a generic “partnership document” or “civil union” document that purports to establish not only medical decisions, but inheritance, financial divisions in separation, or the like.
As long as the living will is the only document in play, court rules in favor of the unambiguous wishes expressed in the living will.
And please note, professional (and highly-skilled amateur) offenderati: I am NOT IN FAVOR of this Virginia law. I abhor it. It is a foolish and overreaching constraint on the right of two people to contract.
Good deal. Payoff will be in September 2006! Mmmmmm…beer.
Really though, on what basis? The expressed wish in the living will is in contradiction with the expressed will and intent of the leglislature.
IA(Obviously)NAL, so bear with me while I offer a hypothetical for your comment.
Here in Florida, prior to July 1, 2003, it would have been permissible for a restaurant owner to require patrons requesting seating to sign a contract stating that they would smoke a cigarette prior to eating their meal. However, on July 1, 2003, the “clean air act” took effect and smoking in indoor restaurants became illegal. The owner could still ask people to sign this contract, but it’s now void and unenforcable because it is in conflict with state law.
The legislature passes a lot of laws I don’t like. They are okay in the sense that, as a law-abiding member of society, I have an obligation to conform my conduct to those laws; as a member of a democratic republic, I have the right to voice opposition and work for change. To that end, I have written to my usually worthless state delegate and my somewhat less-worthless state senator, pointing out that this law is the result of backlash, not reasonable for a state to impose, noting that I support its repeal, and urging them to follow suit.
But I can hardly declare that a law, passed by my elected representatives and signed into law, is somehow invalid merely because I do not like it.
The courts here in Florida in the Schiavo case have repeatedly held that the husband has the right to determine his wife’s treatment up to and including removing her feeding tube - without a living will being necessary, it’s a consequence of their being married. Her parents have contested his desire to remove the tube. Do you really think that if the Schiavos were a gay couple in VA and his authority was based on a living will, the parents wouldn’t jump all over this as a way to get him out of there?
I don’t know what to think about this. On the one hand I’m glad because systematic disenfranchisement of people is not my bag. On the other hand, it pisses me off that a few appointees can overturn the will of the people so easily. I mean, if this referendum was for a Constitutional amendment, how is it possible that a judge can declare that amendment unconstitutional? It’s akin to the SCOTUS voiding the 1st Amendment to the US Constitution, or any other for that matter. Or am I missing something?
I just don’t know. I’m pretty conflicted right now.
This thread, you mean? Nah, I don’t mind–given the debate already in this thread, it’s fine to keep it here. Truth be told, I was just too lazy to find this thread and bump it.
At any rate, I’d be interested in hearing Bricker et al explain the judge’s ruling, and what we’re likely to see in the coming months on this issue.
It’s now become clear that the requirement to have an amendment stick to one subject is not mere state law, but itself a provision of the state constitution. Still, what I said above is valid. And to add a GD flavor to the commentary:
I am among the first to rail at “activist judges.”
This is NOT a case of activist judicial legislation. The plain language of the state constitution requires an amendment not proposed by the legislature to confine itself to one subject. The question of whether same-sex marriage and civil unions and contracts that purport to provide the privileges and effects of marriage are all related closely enough to be considered one subject is a question of law. The proper role of the judiciary is to resolve questions of law: to apply the law, as written, to the facts of a particular case.
The law says, “Only one subject.” The amendment says, “No same-sex marriage, and no civil unions between members of the same sex, and no contracts that provide the benefits of marriage to same-sex couples.” The question of whether that amendment violates that law is a question for the courts to decide.
A gay couple from Arlington or Springfield, one of whom participates here (and I believe there are actually a few who do), comes to your office, indicating that they have been impressed with your expertise in legal and constitutional analysis, and indicating that they wish to retain you to challenge this law, as a violation of their constitutional right to contract.
Would you accept their retainer?
Would you advise them to proceed?
Presuming that either you do advise them to proceed, or they indicate they wish to proceed against your advice, how would you argue the case? Divested of the necessary procedural steps, upon what principles of constitutional law would you make the case that that law should be struck down?
Well, my first piece of advice to them would be to retain someone who is still actively practicing law.
My second piece of advice to them would be to retain someone with expertise in the field, rather than a former criminal defense guy.
But putting aside those bagatelles, if I were arguing the case to strike down the law, I’d argue several alternative grounds. The “right to contract” arises out of substantive due process analysis, and I’d certainly argue that. I’d argue an equal protection claim as well, since the Virginia law effectively distinguishes same-sex couples from opposite-sex couples where no rational basis for the distinction exists. I’d further argue that the correct level of scrutiny is intermediate, but that this rule fails even the rational basis test.
